A new dawn for defamation?

A new dawn for defamation?


Author: Kath Livingston

The Defamation Act 2013 comes into force on 1 January 2014. We provide details of the new regulations that will govern website operators when on notice of a complaint about online material.

In our original update, we reported on the main changes and obstacles for companies arising out of the Act.

New regulations for website operators
New regulations - also in force from 1 January - set out the procedure when notice of complaint is received. If the procedure is followed, a website operator (an operator) will have a complete defence under Section 5 of the Act in relation to the material complained of in the notice.

Initial response to complaint: action required by website operator within 48 hours
Within 48 hours of receiving a notice of complaint, an operator must:

  • remove the offending post from its site if it cannot contact the poster electronically
  • if the operator has contact details, it must send the poster a copy of the notice (with the complainant's name and email address redacted unless consent has been given to disclose them) together with a warning that the offending post will be removed from the website unless the poster informs the operator in writing within five days that it objects to such removal. If an objection is notified, the poster must provide their full name, postal address and confirm whether the operator may disclose these details to the complainant
  • send the complainant written acknowledgment of the complaint, confirming the action taken i.e. the complaint has been passed to the poster or the post has been removed from the operator's website

If the poster does not respond within five days
If the poster does not respond within five days, the operator must remove the post from the site and write to the complainant confirming this has been done.

If the poster provides an inadequate response within five days
If the poster responds within five days, but the response is missing required information, such as contact information, the operator must remove the offending post within 48 hours of receiving the defective response.

Written confirmation of this action must then be sent to the complainant.

If the operator believes that the contact information provided by the poster is false, the operator can treat the response as defective.

If the poster provides an adequate response within five days
If the poster responds saying it wishes the post to be removed from the site, the operator must remove it within 48 hours of receiving the response.

However, if the poster objects to the removal of the post, the operator must inform the complainant of the objection within 48 hours of its receipt and confirm that the post will remain on the site. The operator is also required to send the poster's contact details to the complainant, or if consent has been withheld, to tell the complainant that the poster has refused consent for disclosure of these details.

Exception for persistent posting of same material
There is a short cut available where the same or substantially the same material is repeatedly posted on an operator's website and that material has already been removed following the procedure prescribed by the regulations.

If when sending its notice, the complainant tells the operator that it has already complained about the material more than once, the operator must remove the post from the website within 48 hours. In these circumstances, there is no need to go through the prescribed procedure.

Practical effect of the regulations
The regulations will be welcomed by operators because they provide a clear process culminating in a complete defence in respect of defamatory posts on their website. They will be of use to complainants in cases where the poster helpfully ignores the notice of complaint, because they provide a route to the desired outcome - website takedown.

However, they are of little use to complainants where a poster stands by his post (for instance asserting defences such as truth or honest opinion) and objects to take down, particularly where the poster at the same time refuses to allow his contact details to be passed on. The complainant will have to sue the poster directly, where relevant having first obtained a court order against the operator for disclosure of contact details.

Overall, the regulations provide a complex procedural matrix for website operators and complainants alike, with some degree of administrative burden. They do not provide complainants with a guaranteed route to either website takedown or contact details.

Whether you are a website operator or a complainant, you should seek legal advice if you are in any doubt about what to do.